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Food Fraud and the Food, Drug, and Cosmetic Act: Bridging a Disconnect

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Food Fraud and the Food, Drug, and Cosmetic Act: Bridging a Disconnect Food Fraud and the Food, Drug, and Cosmetic Act: Bridging a Disconnect CARISSA CRUSE* ABSTRACT To protect society’s food supply, the term food fraud should be replaced with the term food adulteration when used by the crusaders against food fraud. The term food fraud causes confusion from a legal perspective because it requires an intent to harm in order to take any protective and enforcement measures. This is backwards and needs to be corrected. Replacing food fraud with food adulteration will remove scienter as an element and replace it with a strict liability standard, so that when the food supply is harmed, that alone is enough to take action against the perpetrator of the harm. There is too much at stake when it comes to society’s health, businesses, and cultural requirements to permit a higher standard, specifically one that requires intent. Protecting society’s food supply includes many definitions. For this article, I suggest the crusaders against food fraud adopt the term food adulteration as the umbrella term that includes economic adulteration, food fraud, economically motivated adulteration, and food terrorism (food defense). I also suggest FDA eliminate its working definition of economic adulteration and revert to the definition of adulteration found in statute. Each term is individually defined in the chart below; however, generally, the word “adulterate” is defined as “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element especially: to prepare for sale by replacing more valuable with less valuable or inert ingredients.”1 Food Adulteration Refers to any change in a food product that a consumer (umbrella term) is unaware of regardless of intent. Economic Adulteration A type of food adulteration; a change to a food product that a consumer is unaware of that results in economic gain whether intentional or unintentional. *While economic adulteration is not a substitute for food adulteration (the two are distinct), economic adulteration is specifically described in this article because of its statutory and caselaw presence and because of its close meaning to food adulteration where adulteration itself is emphasized. * Carissa Cruse is 2019 graduate of Georgetown University Law Center. Carissa would like to dedicate this note to her family: Clayton Cruse, Dave Stidger, Nancy Fromhart, Roberta Fromhart, and Penelope and Ranger Cruse. She would also like to thank Professor Joseph Page for all his insight and wisdom. 1 MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/adulterate (last visited Nov. 12, 2018) [https://perma.cc/X7X3-MYHP] (emphasis added). 322 2019 FOOD FRAUD AND THE FDCA 323 Food Fraud An intentional change in a food product that a consumer is unaware of with the purpose to deceive consumers – whether to cause harm or to economically benefit. Economically motivated An intentional change in a food product that a consumer adulteration is unaware of for economic gain. Food terrorism The intentional change in a food product that a (food defense) consumer is unaware of to cause intentional harm on consumers. INTRODUCTION In 2013, the United Kingdom and Ireland recalled ten million pounds of hamburger marketed as “100% beef” when nearly one-third of the hamburger supply consisted of horsemeat; this event was aptly referred to as “Horsegate.”2 Environment Secretary Owen Paterson stated that evidence suggested this was not accidental but instead a result of “either criminal activity or gross negligence,” and one supply chain victim stated this was even possibly “a serious case of fraud” targeting suppliers and consumers economically.3 “Horsegate” occurred during the recession, a time when beef prices soared and supermarkets simultaneously sought lower prices for meat products to satisfy their economy-minded customers.4 Cultural norms and attitudes in the U.K. (and the U.S.) dictate that horses are not to be eaten, and thus, the “Horsegate” incident undermined consumer confidence in supermarkets.5 Customers bought and ate what they believed to be something it was not and paid more for it than they would have had they known what it was (or would not have purchased it in the first place).6 2 Food Safety Authority of Ireland, FSAI Survey Finds Horse DNA in Some Beef Burger Products, NEW FOOD (Jan. 15, 2013), https://www.newfoodmagazine.com/news/9626/fsai-survey-finds-horse-dna- in-some-beef-burger-products/ [https://perma.cc/A55L-MCYE]; James Andrews, Horsemeat Scandal in UK and Ireland Prompts Massive Recall, FOOD SAFETY NEWS (Jan. 28, 2013), https://www.food safetynews.com/2013/01/horse-meat-scandal-in-uk-and-ireland-prompts-massive-recall/ [https://perma.cc/CNH3-EQF9]. 3 Josh Levs & Per Nyberg, Battle Over Blame After Horse Meat Found in Beef Products, CNN (Feb. 15, 2013), https://www.cnn.com/2013/02/10/world/europe/uk-horsemeat-probe/index.html [https://perma. cc/5DWN-AD33]. 4 Felicity Lawrence, Horsemeat Scandal: The Essential Guide, THE GUARDIAN (Feb. 15, 2013), https://www.theguardian.com/uk/2013/feb/15/horsemeat-scandal-the-essential-guide-104 [https://perma.cc/C65X-P4S7]. 5 Tests revealed that an antibiotic administered to horses called bute, that is unfit for human consumption, was present in six percent of the tested carcasses. See James Gallagher, Horsemeat Scandal: Bute Found in Eight Horse Carcasses, BBC NEWS (Feb. 14, 2013), http://www.bbc.com/news/uk-21455419 [https://perma.cc/3PZK-5HBP]; see also European Commission, Horse meat (2013-14), https://ec.europa.eu/food/safety/official_controls/eu-co-ordinated-control-plans/horse_meat_en [https://perma.cc/SCM3-3YNR]. 6 Ben Morris, Horsemeat Scandal: How Tastes Changed, BBC NEWS (Jan. 14, 2014), http://www.bbc.com/news/business-25715666 [https://perma.cc/C65X-P4S7]; Why are the British Revolted by the Idea of Horsemeat?, BBC NEWS (Jan. 18, 2013), http://www.bbc.com/news/magazine-21043368 [https://perma.cc/FDC4-RQXZ]. 324 FOOD AND DRUG LAW JOURNAL VOL. 74 Honey is often adulterated so much so that a whole new honey-like product now stocks supermarket shelves, though still labeled as pure honey.7 To our ignorant palettes, this new product is a perfect imitation of pure honey because it is still sweet, but it is wholly or partially made from cheap syrups such as high fructose corn syrup or glucose.8 The implications of faux honey reach far beyond ignorant palettes and a few consumers’ wallets. In 2001, the United States imposed anti-dumping tariffs on China for dumping Chinese-originated honey, adulterated with fillers, on the United States market at far less than fair market value, which drove many United States beekeepers out of business or into bankruptcy.9 In 2016, Homeland Security Investigations (HSI) seized 60 tons of illegally imported Chinese honey worth $200,000.10 And in 2008, Chicago HSI and the Department of Justice “convicted nine 7 According to scientific honey detection tests (one of them being the “C3 Test”), pure honey registers specific levels of carbon and amino acids. See Sonía Soares, A Comprehensive Review on the Main Honey Authentication Issues: Production and Origin, 16 COMPREHENSIVE REVS. IN FOOD SCI. & FOOD SAFETY 1072, 1072–73 (2017); ROTTEN: LAWYERS, GUNS, AND HONEY (Netflix 2018) [hereinafter ROTTEN]. These specific levels are what give honey its natural sweet taste and its medicinal properties. See Fake Food, GASTRO POD (June 6, 2017), https://gastropod.com/fake-food/ [https://perma.cc/Z43V-KDSS]. 8 This new honey product does not register the same carbon and amino acid levels because it is not pure honey. Hank Campbell, Fake Honey is a Problem and Science Can Solve It—If Government Gets Out of the Way, AMERICAN COUNCIL ON SCIENCE AND HEALTH (Jan. 17, 2018), https://www.acsh.org/news/2018/01/17/fake-honey-problem-and-science-can-solve-it-if-government-gets- out-way-12429 [https://perma.cc/8778-PWB8]; Larry Olmstead, Exclusive Book Excerpt: Honey Is World’s Third Most Faked Food, FORBES (July 15, 2016), https://www.forbes.com/sites/larryolmsted/2016/ 07/15/exclusive-book-excerpt-honey-is-worlds-third-most-faked-food/-57cdd4614f09[https://perma.cc/ 7PL9-QWYC]. See also Patrick Boehler, China’s Next Food Scandal: Honey Laundering, SOUTH CHINA MORNING POST (June 19, 2013), http://www.scmp.com/news/china/article/1264335/chinas-next-food- scandal-honey-laundering [https://perma.cc/WA4B-46H5]. Some products labeled as honey contain no honey. Today’s demand for honey is at an all-time high, and it is one in which supply cannot keep pace, yet somehow, it does. In fact, when honey production dropped in the U.S. and demand increased, supply somehow also increased. See Kim Flottum, Imports, Exports, Production and Consumption from 2016, BEE CULTURE (Apr. 24, 2017), http://www.beeculture.com/u-s-honey-industry-report-2016/ [https://perma.cc/ 58AF-L2AJ]; ROTTEN, supra note 7. 9 Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order; Honey From the People’s Republic of China, 66 Fed. Reg. 63,670 (Dec. 10, 2001) (to be codified at 19 C.F.R. pt. 351); News Release, U.S. Immigration and Customs Enforcement, HSI Chicago seizes nearly 60 tons of honey illegally imported from China, (May 5, 2016), https://www.ice.gov/news/releases/hsi- chicago-seizes-nearly-60-tons-honey-illegally-imported-china [https://perma.cc/7VQH-TEU9] [hereinafter ICE News Release]; ROTTEN, supra note 7. As a result, the U.S. imposed tariffs on Chinese honey at three times the price sold. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order; Honey From the People’s Republic of China, 66 Fed. Reg. 63,670 (Dec. 10, 2001) (to be codified at 19 C.F.R.
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